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1985 DIGILAW 229 (PAT)

Nawal Kishore Dhawal v. Sri Thakur

1985-08-16

A.K.SINHA

body1985
JUDGMENT : Ashwini Kumar Sinha, J. - The petitioner, on 20.10.1982, filed a petition under ORDER :1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') in Title suit no. 9 of 1981 and prayed for being added as a party intervenor-defendant. The parties were heard and the court below by its ORDER :dated 3.10.1983 rejected the petitioner's application. Hence the present application by the petitioner. 2. The plaintiff-opposite party no. 1 filed Title suit no. 9 of 1981 for a declaration that the defendant opposite party bad no right to start the mining operation over plot no. 536 in village Shankarpur in the district of Munger. The plaintiff also prayed for a permanent injunction restraining the defendant no. 1 from carrying the mining operation on the said plot. The plaintiff's claim was that he was the Chela of one Srigovind Deo Das who was the Shebait of the plaintiff. The disputed plot was the raiyati land of the plaintiff and was surrounded by Thakurbari on plot no. 534. The plaintiff's further ease was that from before the vesting of Zamindari the aforesaid plot was in possession of the plaintiff and has been exercising its right in different manners; The plaintiff also claimed that in the vicinity of the aforesaid plot no. 536 there lay the Thakurbari Temple and other buildings of the Thakurbari and that it would be dangerous to carry out the mining operations in the aforesaid plot. Thus, in short, the simple suit of the plaintiff was for a declaration that the defendants-opposite party had no right to start mining operation over plot no. 536 in village Shankarpur in the district of Munger. Other claims as stated hereinbefore were made. 3. The defendants opposite party, including the State of Bihar filed their written statement and contested the suit. The case of defendant nos. 2 and 3 was that the plaintiff was not the Chela of Srigovind Deo Das. The stand of the State of Bihar (one of the defendants) was that the aforesaid plot was a hill and it had vested in the State of Bihar, and the State had been leasing it out for mining the major minerals. The further stand of the State of Bihar was that the Government lastly leased out the aforesaid plot in favour of defendant no. 1 on 19.11.1975 and since then the defendant no. The further stand of the State of Bihar was that the Government lastly leased out the aforesaid plot in favour of defendant no. 1 on 19.11.1975 and since then the defendant no. 1 (the lessee) has been extracting the major minerals from the said mines. 4. Thus, from the cases of the plaintiff and the defendants as stated above, it is apparent and obvious that the main issue in the case was whether the plot in question had vested in the State of Bihar and whether the lease granted by the State of Bihar in favour of defendant no. 1 with regard to the plot in question on 19.11.1975 was a good lease and whether the plaintiff was entitled for a declaration that the defendant no. 1 had no right to start the mining operation over the plot in question. 5. The stand of the petitioner, who sought to be added as intervenor-defendant in the suit, was that Shri Radha Krishna Thakurbari was a public trust for the local public of the village and the Hindu Public had been worshipping in the said Thakurbari. According to the petitioner's case, this Thakurbari had extensive properties. The petitioner, in his application, averred that the plaintiff of the suit was mainly a Pujari and that the Thakurbati being a public trust it was governed by the Bihar Hindu Religious Trust Act. The petitioner's case was that he was the elected Secretary of the Trust Committee and the Trust Committee had taken a decision for removing the plaintiff from his service as Pujari on account of some bungling by the plaintiff. The petitioner claimed that he had been looking after the management and affairs of the said Thakurbari from the date of his election as Secretary and that he had been paying the fees to the Bihar Hindu Religious Trust Board. On these facts, the petitioner claimed to be interested in the suit. 6. The plaintiff filed a rejoinder to the application tiled by the petitioner and contested. The plaintiff denied all the facts alleged by the petitioner. The plaintiff, in his rejoinder, took the stand that the application by the petitioner for being added as intervenor-defendant was filed only in ORDER :to complicate the issue. 6. The plaintiff filed a rejoinder to the application tiled by the petitioner and contested. The plaintiff denied all the facts alleged by the petitioner. The plaintiff, in his rejoinder, took the stand that the application by the petitioner for being added as intervenor-defendant was filed only in ORDER :to complicate the issue. The plaintiff further averred that the properties of Thakurbari were not public trust and no proceeding under section 43 of the Bihar Hindu Religious Trust Act had ever been taken to declare it as a public trust. (Lines have been underlined by me for emphasis). The plaintiff also took the stand that the petitioner had no legal authority or locus standi to intervene in the suit. 7. It is well settled that where presence of a person before a court is necessary in ORDER :to enable the court effectually and completely to. adjudicate upon and settle all the questions in the suit, such person should be added as a party. This principle is a well known principle and its applicability depends upon the facts and circumstances of the case. 8. It is also well settled that if judicial discretion based upon sound principles of law has been exercised either in favour of adding a party under ORDER :1 rule 10, or refusing to add a party, considering all the facts and circumstances of the case, the High Court in revision should not interfere with such exercise of discretion. 9. As already stated above, the main controversy in the suit was whether the defendants-opposite party had any right to start mining operation over plot no. 536. The contesting defendant's stand was, as supported by the State of Bihar (one of the defendants), that the lease by the State of Bihar in favour of defendant no. 1 was a good one and the defendant no. 1 had a right to start mining operation on that basis. 10. The petitioner in the instant case did not state in his petition as to what was his stand in the matter in controversy in the suit. In fact it is obvious that the object of his application with a prayer for being added as an intervenor-defendant was to raise the issue as to who was the trustee of the Thakurbari. Obviously this was a question beyond the scope of the suit and beyond the matter in controversy in suit. 11. In fact it is obvious that the object of his application with a prayer for being added as an intervenor-defendant was to raise the issue as to who was the trustee of the Thakurbari. Obviously this was a question beyond the scope of the suit and beyond the matter in controversy in suit. 11. It is true that in ORDER :to avoid multiplicity of suits, a party can be added, but it is well settled that the addition of such a party must be necessary, for the final adjudication of the question in dispute in the suit. The petitioner, in the instant case, as already found by the court below, has not filed any document to prove that the properties of the Thakurbari were public trust, nor has the petitioner filed any document to show that the properties of the Thakurbari had been declared to be so under section 43 of the Bihar Hindu Religious Trust Act. He has also not filed any document to prove that he was the elected Secretary of the Trust. 12. In this background the court below, in my opinion, has very correctly held that the petitioner was neither a necessary party nor a proper party to the suit. The matter which the petitioner wanted to introduce in the suit, as already indicated above, was absolutely foreign to the matter in controversy in the suit and I hold that the presence of the petitioner, on the facts of the instant case, is not necessary in ORDER :to enable the court effectually and completely to adjudicate upon and settle the questions involved in the suit. In that view of the matter, I hold that neither the impugned ORDER :suffers from jurisdictional error nor the court has acted with material irregularity. 13. I further hold that the judicial discretion in rejecting the petitioner's application, on the facts and in the circumstances of the instant case, has been exercised on sound principles of law and this Court would not interfere sitting in revision under section 115 of the Code. 14. In the result, this application fails and is dismissed. However, there will be no ORDER :as to costs.